news-record.com

A funny thing may have happened to former Gov. Mike Easley on his long strange trip to the courthouse Tuesday afternoon: he may have picked up immunity from prosecution on anything he talked to the State Board of Elections about 13 months ago. (link)

In the courtroom today, right before Easley pleaded guilty, William Kenerly, the special prosecutor assigned to the case, made note of a 1973 that may confer immunity on those subpoenaed to give testimony before the State Board of Elections. Although it’s never been tested in court so far as anyone knows, Easley’s lawyer Joe Cheshire said he thought it would apply in Easley’s case.

The specific statute appears to be GS 163 278.29:

No individual shall be excused from attending or testifying or producing any books, papers, or other documents before any court upon any proceeding or trial of another for the violation of any of the provisions of this Article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him, but such individual may be subpoenaed and required to testify by and for the State relative to any offense arising under the provisions of this Article; but such individual shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may be compelled to testify or produce evidence, documentary or otherwise, and no compelled testimony so given or produced shall be used against him upon any criminal proceeding, but such individual so compelled to testify with respect to any acts of his own shall be immune from prosecution on account thereof. (1973, c. 1272, s. 1.)

“One interpretation of that statute is the state board can accidently afford someone immunity by the mere issuance of a subpoena,” said Chuck Winfree, a member of the State Board of Elections from Greensboro. “I would call on the new legislature to fix this problem.”

Grants of immunity are only supposed to happen, Winfree said, once a witness before the board invokes his right against self-incrimination and the board formally offers it. The mere fact of issuing a subpoena shouldn’t be enough to invoke immunity.

However, Kenerly suggested in court today that at least one of the factors in the Easley plea deal was the possibility of having to figure out exactly what this law means.

Sen. Phil Berger, an Eden Republican and his party’s nominee to become the next President Pro Tempore of the Senate, agreed that it was something that should be on the legislature’s radar.

“I think that’s something we need to look at,” Berger said, saying he was going to research the statute in question.